Code of Criminal Procedure, 1973 – ss.158, 173(3) – Reinvestigation by another agency – Order passed by Secretary (Home), State of U.P., Lucknow for reinvestigation by CBCID – Legality of – Held: s.173(3) r/w s.158 does not permit the Secretary (Home) to order for further investigation/reinvestigation by another agency, other than the officer in charge of the concerned Police Station and/or his superior officer – For reinvestigation, the prior permission/approval of the Magistrate is required – In the present case, the Secretary (Home) passed an order for reinvestigation by CBCID and thereafter, the CBCID sent the intimation to the Magistrate – Thus, no prior approval/permission was accorded by the Magistrate – Order passed by the Secretary (Home) ordering reinvestigation by another agency and that too, on the basis of the application/complaint submitted by mother of the accused is unknown to law – Impugned judgment passed by the High Court is quashed and set aside – Order passed by the Secretary (Home) and consequently, further investigation/reinvestigation by the CBCID is also quashed and set aside – Penal code – ss.302, 120B. Disposing of the appeals, the Court
HELD: 1.1 Respondent Nos. 8 and 11 as such have been chargesheeted for the offence under Sections 302 and 120B of the IPC of which the cognizance has been taken by the Magistrate on 21.12.2016. That thereafter, respondent No. 8 as such moved the quashing petition before the High Court for quashing the entire criminal proceedings including the chargesheet/supplementary chargesheet. The High Court dismissed the quashing petition. Therefore, the accused must have taken all the defences which might have been available to him while considering quashing petition including the ground on which now further investigation/reinvestigation is ordered by another agency, namely, CBCID. Thereafter, respondent No. 8 approached this Court and the Special Leave Petition came to be dismissed by this Court and the interim protection in favour of respondent No. 8 came to be vacated. That thereafter, nonbailable warrant was issued against respondent No. 8 and only thereafter, mother of respondent No. 8 – accused moved an application before the Secretary (Home) for further investigation and he transferred the investigation to CBCID, inter-alia, on the ground that the so-called eye witnesses of the murder were not the eye witnesses. The request of the mother of accused has been accepted by the Secretary (Home) and the investigation was transferred to another agency, namely, CBCID despite the fact that after the first chargesheet, the investigation was handed over to the District Crime Branch to further investigate the case and they filed the supplementary chargesheet in which respondent Nos. 8 and 11 were even chargesheeted. Therefore, as such it is not a case of further investigation, but is a case of reinvestigation by another agency. The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too, on the basis of the application/complaint submitted by mother of the accused is unknown to law. [Para 7][651-F-H; 652-A-B]
1.2 There cannot be any dispute that even after the chargesheet is filed, it is the right of the investigating officer to further investigate in respect of offence even after a report under sub-section (2) of Section 173 of Cr.PC forwarded to a Magistrate and as observed and held by this Court the prior approval of the Magistrate is not required. However, as per the settled position of law, so far as the reinvestigation is concerned, the prior permission/approval of the Magistrate is required. In the present case, the Secretary (Home) has passed an order for further investigation by CBCID and thereafter, the CBCID has sent the intimation to the Magistrate. No prior approval/permission as observed by the High Court has been accorded by the Magistrate. The High Court in the impugned judgment and order has observed that the further investigation is ordered with the concurrence of the Magistrate, which is factually incorrect. In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the Magistrate even while exercising the powers under Section 173(8) of the Cr.PC. So far as the investigation is concerned under the scheme of the Cr.PC, the Police Officer of the concerned Police Station, who is the investigating officer, has to investigate/further investigate the case under the supervision of Superintendent of Police. So far as the Secretary (Home) is concerned, he does not come into picture at all. If such powers are given to the Secretary (Home) in that case any accused who is already chargesheeted may approach the Secretary (Home) and may get an order of further investigation or reinvestigation by another agency and obtain the fresh report nullifying the earlier chargesheet and get himself discharged. If the accused is aggrieved by the chargesheet in that case, the remedy available to him would be either to file the quashing petition under Section 482 of Cr.PC and/or to move an appropriate application for discharge before the Magistrate and it is for the High Court and/or the Magistrate as the case may be, to quash criminal proceedings or discharge the accused. The Secretary (Home) and/or any accused who is already chargesheeted cannot be permitted to circumvent such provision. In the present case, respondent No. 8 – accused earlier did file the quashing petition, but failed. [Paras 7.1, 7.2][652-DH; 653-A-E]
1.3 Section 173(3) read with Section 158 does not permit the Secretary (Home) to order for further investigation/reinvestigation by another agency, other than the officer in charge of the concerned Police Station and/or his superior officer. [Para 7.3][653-G]
State of Andhra Pradesh Vs. A.S. Peter (2008) 2 SCC
383 : [2007] 13 SCR 517; Ram Lal Narang Vs. State (Delhi Administration) (1979) 2 SCC 322 : [1979] 2 SCR 923 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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